Copyright for Photographers

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Released

4/25/2014

The intersection of photography and law is a complex place. At one of those crossroads lies copyright. Many photographers aren't familiar with this important topic and are left struggling with questions like "How do I register my work?" and "What protections do my copyrights provide when I discover that my photos have been used without permission?"

Carolyn Wright is a photographer and attorney who specializes in photographer's rights. She also publishes the popular Photo Attorney blog, where she writes about these issues. In this course, she sits down with Ben Long to discuss what copyright means to photographers and the correct steps to registering and defending their copyrights in the Internet age.

Skill Level Appropriate for all

50m 54s

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- Hi, I'm Ben Long.If you're like me, you take pictures and you understandhow you need to get the shot into the camera,what you need to do with it in the computer,and you have this vague ideathat maybe there's some legal issuesaround using that picture or even taking that pictureand it doesn't go much beyond vague idea.I am here now with Carolyn Wright, the Photo Attorney,and Carolyn, I've got a lot of questionsto ask you about copyright and what it meansand whether I need to do something different,and I understand you're the person to talk to.

- Well I'm happy to be hereand I certainly want to talk about thiscause it's an important subject for photographers.- So we've all heard the word "copyright"and I see the litte C-circleor a C symbol with a circle around it.I have a vague idea that copyright is there toprotect the creator of a work.As a photographer, what's copyright?- Well copyright means different thingsfor different artists,but for photographers it exists at the momentyou fix the photograph and it doesn't matterwhether you are taking a photographon film or on digital or on your DSLR or your iPhone.

What's important is that the momentthat you take a photograph and it's fixed,then you get the protection of copyright.- So merely taking a picture,it's inherently a copyrighted photo?- That's correct.A lot of people think that you have to register a copyrightbefore you get the copyrightbut fortunately for photographers,the moment you take the photo, that you click the shutter,your photograph is protected by copyright.- Okay, so what does that get me? (laughs)- It gives you rights.For photographers it gives you the exclusive rightand this is known under copyright lawas the exclusive rights,and it's under a statute; U.S. Code Statute 17 Title 106and those exclusive rights are the exclusive right to decidewhen or whether your photograph is going to be displayed,whether or when or ifyour photograph is going to be distributed,whether it's gonna be reproducedand whether there's gonna be a derivative workcreated from your photograph.

And derivative works for the simplest termsfor a photographer is that a lot of of photographsare made into paintings.A lot of painters like to usea photograph as a referenceand that's called a derivative work.So you as the copyright owner of the photographget the exclusive right to decidewhether your photograph is going to bereproduced, displayed, distributed,or a creative work created from that copyrighted work.- Okay, so I'm simply in control of how its usedand where it can go and, presumably, whether there's anyfinancial compensation in there along the way.

- That's correct.There is one caveat to that; something called fair useand we can talk about that a little bit laterbut in general this is the exclusive rightsof a copyright owner.- Okay.Now you had mentioned the idea of registering copyright.What is that?Is that something I should do?- I think so.In the United States, and by the way,this is something that is unique to the United States.- Copyright?- No, registering with the copyright office.The other countries who while they will recognize copyright,they don't really have a registration programlike we do in the United States.

So in the United States, if you register your copyrightwith the U.S. Copyright office,it gives you many advantages.Some of those advantages, when you get to court, let's say.If you're fighting about a copyrightit gives you some legal presumptionssuch as that you own the copyright.That's as long as you register the copyright timely.But it also gives you some great benefitsthat if you're infringed and as photographers these daysit's not really if you're going to be infringed,but when you're going to be infringed.

It gives you some options as to damages.Something called statutory damages.- So when we're talking about registering copyrightwe're not talking about,"I've taken this picture, I need to now go"register this picture" are we?Or are we talking about registering myself as an entity?- Good question. No.Really what we're talking aboutis taking copies of those photographsand making, these days, a digital file copyand submitting them to the Copyright Office.And you could do that in a couple of ways.

The old way was when you would register a copyrightyou would have a paper version of it; a paper.You fill out a form and you send init could be a photocopy of the photograph,it could be contact sheets.That's the old way of doing it.Fortunately today the U.S. Copyright Office has something;what they call the Electronic Copyright Office.It's a little 'e', capital 'C', capital 'O' for short.We call it the eCO system; Electronic Copyright Officeand it's really easy now.

You can sign up online and in a few minutesyou just fill out some informationabout your photographs that you've taken.You can register one or you can register many at a timeand you fill out some information about your photographs,you pay the Copyright Office a little bit of money,and then you upload copies of your photographsso that you actually have copies deposited.That's what they call it.Depositing a copy with the Copyright Officeand that way if people want to determinewhich photos are registered with the Copyright Office,there's online records.

They can go look at the paper recordsat the Copyright Office in Washington D.C.But that's essentially the way you get it registered.- Okay.In the digital age, I shoot a lot of pictures.Am I choosing to register just my final selectsor do I only worry about images that I'm gonna beputting out in the world somewhere?- I tend to, when I'm taking a lot of photos,I generally take photos when I'm travelling, for example,or a project or a shoot or something like that.My practice is to register all of myunpublished work as one group.

So let's say I go to Venice on a tripand I will come back to my computerand I will make copies of all of those photosthat I've taken in Venice.Even the ones that I don't plan to release to the publiccause it doesn't cost you any moreand it's just an automated process that I have.That I make a copy, get my photograph ready toupload to the Copyright Office,and then I register them as unpublished.And it is tough if you are a high volume shooter.It is tough to try to get all of your photographsregistered in that way. - Yeah.

- Fortunately the Copyright Office is nowunder a Beta program where you can registerbulk volumes of your published photographs online as well.So a lot of it is depending on what kind of shooter you areand when you can get your photographs registered.You can register them as unpublishedor you can register them as published.And for the photographer who's now playing catch up,and maybe has never ever registered a photographin his or her life,the best thing is to go backand register your published works,the works that are out there,because they likely are being infringedespecially if they're on the weband you want to make sure that your published work,the work that's out there accessible to the public,is registered so you can get some protection that way.

- What counts as published these days?Is that has to have been in some official magazineor I put something on Facebook or on my blog,is that published?- That's a difficult questionbecause the Copyright Office really doesn't tell us.They will usually ask you.If you call the Copyright Office right nowand ask the Copyright Office,"Alright, I've posted a photograph"on a social media site."Is that published?"And the Copyright Office will ask you,"Do you think it's been published?"- [Ben] (laughs)- "No, yes. Whatever."- This is like Copyright Office as therapist.

(Carolyn laughs)Well how do you feel about your rights?- Exactly.Well the safest thing is that if you've madeyour photographs available to the public,to consider them as published.There's a lot of distinctions that may change thataccording to the law.But there's really an advantageto registering them as publishedrather than unpublished and it's just really toolegal geeky to get into that right now.But if you've made it available to the public,that's the best thing.

If you, for example, put your photographs onlineand they're password protected;for example to a client and say,"Check these out."Here's the password. Protected it."That's likely not published.- Okay.- So if the general public can't get to it,it's generally not to be considered published.- Okay.Published does not necessarily mean,does not inherently mean commercial saleor something like that.- Well, part of the problem that we have nowis that in the old days to publish a photograph,it really meant it was published in a magazine.

- Right. - It was published in a book.We didn't have the internet to wonderwhether something was published.So the courts really haven't caught up with technologyand the internet age and so we really don't havedistinct definitions yet of whethersomething on a social media website is or in an eBook,whether that would be considered to be published.